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CHURCH LANDS IN PORTO RICO. 


Coudert ddrothet^s to Mr. Foraker. 


June 10, 1902. 

Hon. J. B. Fokakek, 

United States Senate. 

Dear Sir: After an interview this forenoon at the Department of 
State, we beg to suggest that before an}^ action is taken by the Senate 
on H. R. 1-12F1, for the reservation of certain public lands and build¬ 
ings in Porto Rico, time be given for the consideration of an amend¬ 
ment which may be submitted or recommended by the President or 
Secretary of State for the settlement of the titles of the Catholic 
Church to property in the island on the same basis as underlies the 
administrative settlement of the same question which has been effected 
in Cuba to the satisfaction of all concerned. We expect to have the 
matter presented to the State Department within a few days. You 
will recollect that Bishop Blenk showed you letters which he had 
received from the President, the Secretary of War, and Governor 
Hunt on the subject. The amount of property involved in the pro 
posed amendment is very small in comparison with that affected by 
the Cuban settlement. 

As the pendenc}" of the House bill above mentioned gives an excel¬ 
lent opportunity for a prompt settlement of this matter, which the 
President is anxious not to leave longer unsettled, we trust that you 
will have the goodness to give us the time we need to bring it properly 
to the attention of your committee. 

Yours, faithfully, Coudert Bros. 


Coudert Brothers to the Department of State. 

June T1, 1902. 

Hon. William L. Penfield, 

Solicitor of the Department of State., Washington^ D. C. 

Dear Sir: Referring to the interview which the Right Rev. J. M. 
Blenk, bishop of Porto Rico, and our Mr. Kennedy had with you on 
the 9th instant, we beg to inclose the following documents for the con¬ 
sideration of the Department: 

1. A letter from the President to the Secretary of War, dated the 
2d instant, with an indorsement thereon by the Secretary of War in 
the form of a letter to the Secretary of State. 

2. Church lands in Porto Rico. Memorandum for the Secretary of 
State, signed by Bishop Blenk and b\; the qnder^igh^J co^nsqh^ .• 




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2 


CHURCH LANDS IN PORTO RICO. 


■ TICs' 

3. List of the property in possession of the Spanish Government^ 
but belonging- to the Catholic Church in Porto Rico when the United 
States took possession of the island. 

4. Copy of H. R. 14244, now pending in the Senate, with a pro¬ 
posed amendment recognizing the title of the Catholic Church to cer¬ 
tain property in the island of Porto Rico. 

6. Cop 3 ^ of the report of the commissioners appointed to examine 
the claims of the Catholic Church to property in Cuba, which was 
made the basis of a settlement between the said church and the Gov¬ 
ernment of the United States. 

You will observe that the President described the bishop’s business 
as ‘‘veiy important” and says it “should be concluded without 
unnecessary delav;” also that the Secretary of War expresses the 
opinion, after a discussion of the subject with the bishop, “ that there 
are substantial rights to be recognized.” 

It is, as the Secretaiy of Ybir suggests, a question of recognition. 
No new rights or interests would be created by the proposed legislation. 

We trust that the Secretaiy of State ma^^ deem it proper to^ recom¬ 
mend favorable action to Congress or to the Senate Committee on 
Pacific Islands and Porto Rico, of which Senator Foraker is chairman, 
and which Avill have the House bill No. 14244, for the disposition of 
public lands in Porto Rico, under consideration next Monday. The 
papers might be sent to the committee with the Secretary’s remarks, 
and printed for the information of Congress. This seems to be the 
only opportunity to have the matter settled this session. 

Thanking you on behalf of the bishop and ourselves for your atten¬ 
tion and courtesy, we remain. 

Yours, faithfully, Coudert Bros. 


[Inclosure 1.] 


The President to the Secretary of War. 

White House, 
Washington^ June 1902. 

My Dear Mr. Secretary: 

This will introduce to you the Rev. Bishop Blenk, of Porto Rico. 
Governor Hunt in his letter of introduction speaks of the bishop as 
follows: 

He has always been a true and helpful friend of the Government. He is good, 
strong, influential, and patriotic under all circumstances. We admire him. We 
have felt the lift of his sterling character in our work. I am indeed glad to tell you 
that we owe him that gratitude due to an unselfish Christian, whose life and whose 
services have contributed in a substantial and constant way toward the end for 
which we are all striving in Porto Rico. 

This is the strongest letter I have ever known Governor Hunt to 
write. From other sources 1 have heard much of the bishop and of 
the invaluable nature of his work in Porto Rico. He feels that it is 
imperatively necessary to reach some such solution of the church 
property question in Porto Rico as that which we reached in Cuba, 
May I ask that j^ou have his request carefully examined ? I hope that 
we shall be able to act along the lines he desires in this matter. It is 

tf.it < < < < 



CHURCH LANDS IN PORTO RICO. 


3 


evidently a very important business, and should be concluded without 
unnecessary delay. 

1 would like to have a Catholic American who speaks Spanish 
appointed as chaplain of the Porto Rico provisional regiment. 
Sincerely, yours, 


Hon. Elthu Root, 

Secretary of War, 


Theodore Roosevelt. 


The Secretary of War to the Secretary <f State, 


[Indorsement on the President’s letter of June 2, 1902.] 

Dear Mr. Hay: This letter is designed to promote the disposition 
of matters which rest in the State Department, and I beg to introduce 
Bishop Blenk to you. While Porto Rico was under the War Depart¬ 
ment 1 discussed the subject with him and do not doubt that there are 
substantial rights to be recognized. 

Faithfully, yours, Elthu Root. 


[Inclosiire 2.] 

CHURCH LANDS IN PORTO RICO. 

[Memorandum for the Secretary of State.] 

Prior to the year 1845 the Spanish Government had seized and confis¬ 
cated a large portion of the property rightfully owned by the Roman 
Catholic Church in the islands of Cuba and Porto Rico, and afterwards, 
in order to redress this wrong and make amends as far as practicable 
for the injustice done, the law of 1845, which is mentioned in the con¬ 
cordat of 1851 between the Holy See and the Spanish Crown, was 
promulgated. Article 33 of this concordat reads as follows: 

There shall be returned immediately and without delay to the same (the religious 
congregations), and in their representation to the diocesan prelates in whose terri¬ 
tory the convents are or were prior to the last vicissitudes, those properties belong¬ 
ing to them which are in the possession of the Government and which have not 
been disposed of. 

In article 38 of this concordat we find the following provision: 

Moreover, there shall be returned to the church, immediately, and without 
delay, all the church properties not comprised in the aforementioned law of 1845, 
and which have not as yet been disposed of, including the remaining properties of 
the religious communities of man. 

It is to be observed that the exclusion of the properties ‘‘not com¬ 
prised in the aforementioned law of 1845” from the restitution agreed 
upon and ordered in the concordat of 1851, was made because the 
properties included in that law of 1845 had been returned to the church. 
The law of 1845 reads as follows: 

Only Article, The properties of the secular clergy, not disposed of, and the sale 
bf which was ordered suspended by royal decree of July 26, 1844, are returned to the 
^ame clergy. 

. The Spanish Government bound itself in the concordat of 1851 to 
pay the endowment for worship and for the clergy in the manner 
stated in the various articles, especially in articles 28 to 40, and in 



4 


CHURCH LANDS IN PORTO RICO. 


fulfillment of this obligation it was paying in the island of Porto Rico 
the amounts of the appropriations made from year to 3 ’ear in the 
ecclesiastical budget. 

After the promulgation of the concordat' of 1851, and to attain 
more efi'ectivel 3 " the accomplishment of its purposes, the concordat of 
1859 between the H 0 I 3 " See and the Spanish Crown was promulgated, 
the express object of which was “ to perpetuall}^ secure the church in 
the peaceful possession of her properties and to forestall all motives 
for violating the solemn concordat entered into on March 16, 1851,” 
Her Catholic Majesty’s Government promising‘Ghat on future no 
sale, exchange, or other kind of disposal of the said properties would 
be made without the necessary authorization from the selfsame Hoh" 
See and to definitelv carrv into eti'ect the plan for the endowment for 
worship and the clerg}^ ordered in the concordat.” (See articles 1 
and 2 of the concordat of 1859.) 

Pending the actual return of the properties in question to the 
church, the Government of Spain kept paying to the proper church 
authorities the amount of the appropriations made in the ecclesias¬ 
tical budget by way of compensation for the continued retention and 
use of these properties. This was the situation in Porto Rico when 
the island w^as occupied by the military forces of the United States in 
the summer of 1898. The militaiy authorities of the United States 
took possession of the lands in question, including the convents of 
Santo Domingo and San Francisco in the city of San Juan and con¬ 
tinued to make the proper pavements to the church until October, 1898. 

The purpose of the proposed amendment to H. R. 14244, which has 
passed the House and is now pending in the Senate, is to convert the 
equitable interest of the church and its right to the return of these 
properties, as recognized in the aforesaid concordats, into a legal title 
and actual possession of the same. Of course, the Government of the 
United States can not enter into the relations or assume the obligations 
and discharge the trusts which subsisted between the H 0 I 3 " See and the 
Crown of Spain in respect to these lands at the time of the cession. 
Such relations are precluded by the constitutional separation of church 
and state, but instead of this inherent inabilit 3 " on the part of our 
Government being an}^ reason for hesitation in putting the church in 
possession of these properties, it is, on the contrar}^, a reason of the 
strongest kind wh}" the title of the church to the property should be 
recognized and she should be put in possession of it without an 3 Mela 3 ". 
The church should sutler no disadvantage from the change of sov¬ 
ereignty in respect of its propert}" rights, legal or equitable. The 
treaty of peace, as w^ell as the law of nations, guards the church 
against such injustice. 

It is hereby declared [saj^s Article VIII of the treaty] that the relinquishment or 
cession, as the case may be, to which the preceding paragraph refers, can not in any 
respect impair the jwoperty or rights which by law belong to the peaceful possession 
of property of all kinds, of provinces, municipalities, public or private establish¬ 
ments, ecclesiastical or civic bodies, or any other associations having legal capacity to 
acquire and possess property in the aforesaid territories renounced or ceded, or of 
private individuals, of whatsoever nationality such individual may be. ' 

Article 38, Title II, Chapter II, of the civil code of Spain, which was 
in force in Porto Rico at the time of the cession of the island to the 
United States, reads as follows: 

Juridical persons may acquire and possess property of all kinds as well as contract 
obligations, and institute civil or criminal actions in accordance with the laws and 
rules of their establishment. 


CHURCH LANDS IN PORTO RICO. 


5 


The church shall be governed in this particular by what has been agreed upon by 
both powers (Spain and the Holy See); and educational and charitable institutions 
by the provisions of special laws. 

There can be no question that the church is a juridical body, and as 
such can hold and convey all kinds of property. This capacity of 
ownership is demonstrated in the report of the commissioners who 
were appointed to examine the question of the rights of the church in 
Cuba, and in that same report is to be found a full discussion of the 
facts and principles involved in the settlement which was made between 
the church and the Government of the United States in its executive 
capacity prior to the establishment of the Cuban Republic. A copy 
of that report is annexed to this statement and should be examined in 
the consideration of this matter, inasmuch as the church in Porto Rico 
contends that its rights should be determined by the same principles 
which were applied in the settlement of the rights of the church in 
Cuba. 

It will appear from the annexed statement of the properties belong¬ 
ing to the church in Porto Rico that the value involved is almost 
nominal compared with the value of the property which was held to 
belong to the church in Cuba. 

As a settlement of this much larger interest in Cuba has been made 
and carried into effect by the President, who had control of the island 
pending the establishment of the Cuban Republic, it is exceedingly 
desirable that a settlement of the rights of the church in Porto Rico, 
which had been annexed to the United States, and is under its sovereign 
jurisdiction, should be made without any further delay, and the fact 
that a bill is now pending in Congress for the disposition of the public 
lands in that island seems to furnish an opportunity for an early legis¬ 
lative settlement of this important matter. 

The recognition and protection of the property rights of the Catholic 
Church in Cuba, Porto Rico, and the Philippines by our Government 
will be appreciated not only by the population of these islands but also 
by all the Catholics of the United States and will undoubtedly promote 
the peace and prosperity which are everywhere dependent on respect 
for the law. 

Respectfully submitted. 

> * CouDERT Brothers; 

Crammond Kennedy, Counsel. 

Rev. J. H. Blenk, 

BiCtop of Porto Rico^ 

W ASHiNGTON, D. C., June 11,1902. 

[Additional memorandum.] 

Referring to the memorandum on this subject which was submitted 
to the Secretary of State by the Right Rev. el. H. Blenk, bishop of 
Porto Rico, and the undersigned as Ms counsel, on the 11th of June, 
1902, we beg leave to invite attention to the long line of decisions of 
cthe Supreme Court of the United States, construing those provisions 
of treaties and acts of Congress for the protection and ascertainment 
of the righU of property of the inhabitants of territories which have 
'been ceded to the United States. These acts and decisions deal with 
'claims that arose under the treaty of 1803 with France, 1819 with 
Spain, and 18-18 with Mexico. Those decisions show that what 
Bishop Blenk asks on behalf of the church is nothing more than it is 
the duty and has long been the usage of the United States to grant. 


6 


CHURCH LANDS IN PORTO RICO. 


Ill Percheinan’s case (7 Pet., 51) Chief Justice Marshall said that the 
provision in the treaty of 1819 with Spain for the protection of pri¬ 
vate property was but an expression of the existing law" of nations on 
the subject, and that even in cases of conquest it was very unusual for 
the conqueror to do more than displace the sovereign and assume 
dominion over the countiw. 

Modern usage of nations [said the Chief Justice] which has become law w'Oiild be 
violated; that sense of justice and of right which is acknowledged and felt by the 
whole civilized world would be outraged if private property should be generally 
confiscated and private rights annulled on a change in the sovereignty of the coun¬ 
try. The people change their allegiance, their relation to their ancient sovereign is 
dissolved, but their relations to each other and their rights of property remain 
undisturbed. 

* 

In United States v. Clarke (16 Pet., 228, 232) the Supreme Court 
said: 

That Spain had the power to make grants founded on any consideration and sub¬ 
ject to any restrictions within her discretion is a settled question. If the act was 
binding on that government, so it is on this, as the successor of Spain. All the grants 
of land, made by the lawful authorities of the King of Spain, before the 24th of Jan¬ 
uary, 1818, were by the treaty ratified and confirmed to the owners of the land. 
Such is the construction given to the eighth article by this court in Arredondo^s case 
(6 Peters, 706), and in Perchemmi’s case (7 Peters, 51); that is, imperfect titles icere 
equally binding on this Government after the cession as they had been on the ISpanish Gov¬ 
ernment before. 

In United States v. Kingsley (12 Pet., 476) the court said: 

In the construction of the Florida treaty it is admitted that the United States suc¬ 
ceeds to all those equitable obligations wUich we are to suppose would have influ¬ 
enced his Catholic majesty to secure their property to his subjects, and which would 
have been applied by him, in the construction of the conditional grant, to make it abso¬ 
lute; and further that the United States must maintain the rights of property under 
it, by applying the laws and customs by which those rights were secured before 
Florida was ceded, or by which an inchoate right of pro])erty would, by those laws 
and customs, have been adjudicated by the Spanish authority to have become a per¬ 
fect right. 

In the lessee of Pollard’s heirs v. Kibbe (14 Pet., 353), in which the 
earlier cases are reviewed, the court said: 

When territory is acquired by a cession or relinquishment of one nation to another, 
or by conquest, the rights of private property are protected by the law of nations, 
according to the law of the territory, though no stipulation is contained in the act of 
cession or relinquishment; and even in case of compiest no other change is effected 
except as to government; and that when a stipulation for property is required it is 
never refused, and when made is sacredly observed. 


[Inclosiirc 3.] 

LIST OF THE PROPERTY IN POvSSESSION OF THE SPANISH (GOVERNMENT 
BUT BELONGING TO THF^ CATHOLIC CHURCH IN PORTO RICO WHEN THE 
UNITED STATES TOOK POSSESSION OF THE ISLAND. 


A farm in San German, comprising about 88 acres and valued ah 
$3,500. , 

A farm in the same district, comprising about 1,400 acres and valued* 
at $27,000. ' .i 

A farm in Yauco, comprising about 60 acres and valued at $360. 



CHUKCH LANDS IN POETO EICO. 


7 


The convent of Santo Domingo on Plaza Ponce in the city of San 
Juan and the lot on which it stands, including the central court 3 ^ard, 
valued together at $75,000. 


The convent of San Francisco, on Plaza San Francisco, in the city of 
San Juan, and the lot on which it stands, including the central court- 
y-ard, valued together at $100,000. 

Censos, or ground rents, of which the government of Porto Rico 
has a record, the capital of which does not exceed $30,000, and the 
yearly income $1,500, subject to redemption in each case on pa\mient 
of the principal. 


[Inclosure 4.] 

![H. R. 14244, Fifty-seventh Congress, first session. In the Senate of the United States, May 19, 1902. 

Read twice and referred to the Committee on Pacific Islands and Porto Rico.] 

AN ACT authorizing the President to reserve public lands and buildings in the 
island of Porto Rico for public uses, and granting other public lands and buildings 
to the government of Porto Rico. 

Be it enacted hy the Senate and House of Rejyresentatims of the 
United States of Ameodca in Congress assembled^ That the President 
be, and he is hereby, authorized to make, within one 3 ^ear after the 
approval of this act, such reservation of public lands and buildings 
belonging to the United States in the island of Porto Rico for mili¬ 
tary, naval, light-house, marine-hospital, and other public purposes, 
as he may deem necessaiy, and all the public lands and buildings, not 
including harbor areas and navigable streams and bodies of water, 
owned by the United States in said island and not so reserved be, and 
the same are hereby, granted to the government of Porto Rico, to be 
held or disposed of for the use and benefit of the people of said island: 
Prodded^ That said grant is upon the express condition that the gov¬ 
ernment of Porto Rico, by proper authority, release to the United 
States any interest or claim it may have in or upon the lands or build¬ 
ings reserved by the President under the provisions of this act. 

[Proposed amendment to be inserted after line 4, page 2, H. R. 14244.] 

And also provided^ That anv and all property which on the militaiy 
occupation of the island of Porto Rico b}" the forces of the United 
States in July, 1898, was held in usufructuaiy poss ssion b}^ the 
Government of Spain or the Spanish authorities in Porto Rico, and 
which, including certain “censos” or ground rents, belonged to the 
Holy Roman Catholic Church under or yirtue of an\^ concordat or 
other agreement between the* said church and the Crown of Spain in 
force at the time aforesaid, shall be, and shall be henceforth regarded 
and treated as, the property of the said church in fee simple, and may be 
registered, together with the temples, chapels, presbyteries, and other 
ecclesiastical buildings and grounds which were and are in the peaceable 
possession of the said church in Porto Rico, in the same manner and 
with the same effect as other property^ of the same kind under the laws 
in force in the said island. 



8 


CHURCH LANDS IN PORTO RICO. 


[Inclosure 5.—Translation.] 

COMMISSION TO INVESTIGATE INTO AND REPORT UPON THE CLAIMS TO 
PROPERTIES AND PROPERTY RIGHTS OF ALL KIND AND CLASSES 
FILED BY THE BISHOP OF HABANA. 

Maj. Gen. Leonard Wood, 

Military Governor of the Island of Oicba. 

Sir: The commission appointed to investigate into and report upon 
the claims to properties tiled by the bishop of Habana has the honor 
to set forth: 

That according to article 4 of Orders No. 321,*" c. s., the report 
shall be in detail in the case of each property or parcel of property, 
and of each right in the property (jus in re), claimed by the bishop, 
but the commission can not now comply with this order, because it is 
not as jmt in possession of the complete list of the church property 
held by the State. The department of finance has been requested to 
furnish this list, and the said department has begun to do so. On the 
other hand, the claims of the bishop are comprised in several general 
points, from which it is possible, without further delay, to draw con¬ 
clusions which have to serve as precedent in order to study separately 
what pertains to each property and to each right, or to abstain from 
making this study in case same should prove to be unnecessary. 

The commission shall, therefore, express its opinion on the funda¬ 
mental question, considering same on the grounds of strict justice. 


^No. 321. 

« 

Headquarters Division of Cuba, 

Habana, August 15, 1900. 

The military governor of Cuba directs the publication of the following order: 

I. Pedro Gonzdlez Llorente y Ponce, Emilio Iglesias y Cantos, Juan Victor Pich¬ 
ardo y GonzJlez are appointed to constitute a commission to investigate and report 
upon the claims of property and property rights of every kind and nature made by 
the bishopric of Habana. 

II. To carry out the objects of said commission it is hereby authorized and empow¬ 
ered to call witnesses, to take testimony under oath or affirmation, to call for the 
production of all private and public documents, and to hear evidence and arguments 
on behalf of persons or corporations directly interested. 

III. All notaries, registrars of property, and other officials shall produce the docu¬ 
ments or records, or certified copies thereof, as called for by the commission, and 
shall receive no fees therefor. 

IV. The report of the commission shall be in detail as to each piece or parcel of 
property and as to each specific property right claimed by the bishopric of Habana,. 
setting forth its findings of fact and its conclusions of law thereon, and shall, if the 
commission consider it necessary, make such general or specific recommendations as 
justice may require. 

V. A refusal on the part of any person or corporation to appear and testify or to* 
produce documents will be punished by the counts in like manner as in similar cases 
of disobedience of the mandates of a judge or tribunal. 

VI. Such counsel, stenographers, and assistants as may be found necessary will be 
appointed hereafter. 

J. B. Hickey, 
Assistant Adjutant- General. 

No. 390. 

Headquarters Division op Cuba, 

Habana, September 25, 1900. | 

The military governor of Cuba directs the publication of the following order: 

Juan O’Farrill is hereby appointed as member of the commission instituted by 
Order No. 321, current series, from these headquarters, vice Emilio Iglesias, resigned. 

J. B. Hickey, 
Assistant Adjutant- General. 



CHURCH LANDS IN PORTO RICO. 


9 


The church, as a juridical person, has hold and holds the right to 
acquire, possess, or transfer all kinds of properties. The church has 
never been denied this right in Spain; rather, on the contrary, in all 
the provisions covering these matters this right has been recognized 
in the church. The provision to which the highest value is attached 
is the concordat between His Sanctity Pope Pius IX and Her Majesty 
Queen Isabella II, entered into on March 16, 1851. Article 33 of this 
agreement reads as follows: 

_ There shall be returned, immediately and without delay, to the same (the reli¬ 
gious congregations), and in their representation to the diocesan prelates in whose 
territory the convents are or were prior to the last vicissitudes, those properties 
belonging to them which are in the possession of the Government and which have 
not been disposed of. 

Article 36 reads in part as follows: 

The prelates, in the names of the religious communities that own property, etc. 

Article 40 reads as follows: 

It is declared that the aforesaid properties and revenues belong in ownership to 
the church. 

The agreement made on August 25, 1859, also between the Pontiff 
and the Queen of Spain, contains a most solemn, absolute, and explicit 
statement on this point. 

Article 3 reads as follows: 

Firstly, Her Majesty’s Government recognizes, again and formally, the unrestricted 
and full right of the church to acquire, retain, and enjoy the ownership of all kinds 
of properties, without limitation or reserve; and any orders or laws contrary to this 
are consequently abrogated, especially such parts of the law of May 1, 1855, as are 
in opposition to this agreement. 

And even the same law of 1855, abrogated by this agreement of 1859 
in such parts as might be in opposition to same, in which certain prop¬ 
erties were declared to be offered for sale, mention is made of those 
m’operties ‘‘belonging to the church, those belonging to mortmains.” 
There is no law, royal order, or royal decree that gives the State the 
ownership of those properties. 

It is not necessaiy to make a history here of all the provisions made 
bv the Spanish Government relative to the aforestated properties. 
These provisions, divergent in some cases and contradictor}^ in others, 
changing with the varying spirit that animated the persons who made 
them, were always the object of serious and continued controversies 
between the Government and the church. The most authorized solu¬ 
tion of this problem was at last found in the concordat of 1851 and 
in the additional agreement of 1859. In these it was desired to adjust 
the consideration which, from a standpoint of financial convenience, 
some of the accomplished facts should receive, with the respect for 
rights that had been violated or that might in future be violated; and 
the leading thought which predominated was that a lasting, necessary, 
and just compensation be made. 

The principal stipulations, in so far as they refer to the point at 
issue in the opinion here rendered, were the following: 

There shall be returned, immediately and without delay, to the same (the religious 
communities), and, in their representation, to the diocesan prelates in whose terri¬ 
tory the convents are or were prior to the last vicissitudes, the properties belonging 
to them (the religious communities) which are in the possession of the Government 
and which have not been disposed of. But His Holiness, taking into consideration 
the actual condition of these properties and other particular circumstances, orders 
that the prelates, in the names of the religious communities that own property, pro- 


10 


CHURCH LANDS IN PORTO RICO. 


ceed immediately and without delay to sell the aforestated properties at public auc¬ 
tion, held in the manner prescribed in the sacred canons, allowing persons 
appointed by Her Majesty’s Government to take part in same in order that, with the 
proceeds of this sale, the expenses for worship and other general expenses might be 
attended*to with more uniformity. The proceeds of these sales shall be converted 
into nontransferable State consols (inscripciones, deeds, or instruments with which 
a perpetual revenue is collected from the State) at 3 per cent, the capital and inter¬ 
est of which shall be distributed among the aforesaid convents in proportion to their 
needs and financial standing, in order to attend to the aforestated expenditures and to 
the payment of the pensions of the nuns (religiosas) who may be entitled to receive 
same, without affecting the Government supplying, as hither.to, the necessary amount 
for the complete payment of the said pensions up to the death of the pensioners. 
(Article 35.) 

Moreover, there shall be returned to the church, immediately and without delay, 
all the church property not comprised in the aforementioned law of 1845, and which 
have not as yet been disposed of, including the remaining properties of the religious 
eommunities of men. But in view of the actual conditions of both these properties 
and of the evident profit that the church would derive therefrom, the Holy Father 
orders that their capital be immediately and without delay converted into nontrans¬ 
ferable State consols (“inscripciones”), at 3 per cent, observing exactly the form and 
rules established in article 35 relative to the sale of properties of nuns (religiosas). 
(Article 38.) 

It is to be observed that the exclusion of the properties “not com¬ 
prised in the aforementioned law of 1845 ” from the restitution agreed 
upon and ordered in the concordat is made because the properties 
included in that law, which is that of April 3 of the said year, had 
been returned. The law reads as follows: 

Only Article. —The properties of the secular clergy not disposed of and the sale 
of which was ordered suspended by royal decree of July 26, 1844, are returned to the 
same clergy. 

The State bound itself in the concordat to pa}" the endowment for 
worship and for the clergy in the manner stated in various articles, 
especially in articles 28 to 40, and on this score it has been paying in 
this island the amounts of the appropriations made in the ecclesias¬ 
tical budget. 

The essential objects of the agreement of 1859 were, as was textu- 
ally stated, “to perpetually secure the church in the peaceful possession 
of her properties, and to forestall all motives for violating the solemn 
concordat entered into on March 16, 1851,” Her Catholic Majesty’s 
Government promising “that in future no sale, exchange, or other 
kind of disposal of the said properties would be made without the 
necessary authorization from the selfsame Holy See, and to definitely 
carry into effect the plan for the endowments for worship and the 
clergy ordered in the concordat.” (Articles 1 and 2.) 

In article 3 Her Majesty’s Government recognized again and for¬ 
mally the right of property which unrestrictedly and fully belongs to 
the church, such laws or orders in conflict with this agreement being 
consequently abrogated by same. In article 4 Her Majesty’s Gov¬ 
ernment recognizes the church as the absolute owner of each and 
every one of the properties returned to her by the concordat. But 
having taken into consideration the state of deterioration of those 
properties which have not as yet been disposed of, of the difficult 
administration of same, and of the various, contradictory, and inexact 
estimates as to the value of the rental of same, all of which circum¬ 
stances have thus far made the endowment- of the clergy uncertain, 
and at times fall short, Her Majesty’s Government has proposed an 
exchange to the Holy See, giving bishops the power to determine, in 
accord with their chapters, the price of the church properties situated 


11 


d 

CHURCH LANES IN PORTO RICO. 


in their respective dioceses, the Government offering in exchange for 
the cession of the said property to the State as man^^ nontransferable 
consols of Spain (‘‘inscripciones intransferibles de la deuda publica 
consolidada cle Espana”) at 3 per cent as might be necessary to cover 
the total value of the said properties. 

Article 12 of the concordat provides that— 


The Holy Father, at the request of Her Catholic Majesty, and in order to care for 
the public peace, decrees and declares that those who during the past state of affairs 
might have bought, in the dominions of Spain, properties, in accordance with the 
civil orders then in force, and who are in possession of same, and those who have 
succeeded or are succeeding the said buyers in their rights, shall in no time or man¬ 
ner be molested by His Sanctity, or by the Sovereign Pontiffs, his successors; rather, 
on the contrary, both they and their successors shall securely and peacefully enjoy 
the ownership of those properties and the emoluments and revenues of same. 


The permanent force of those provisions was declared in article 15 of 
the concordat. By virtue of this concordat all laws, orders, and 
<iecrees published in any manner in the dominions of Spain in conflict 
with same shall be considered altrogated, and the same concordat shall 
henceforth be forever in force as a law of the State in said dominions. 
In her decree, dated November 26, 1852, the Queen of Spain, address¬ 
ing the Captain-General, governor of this island, said: 


Although the last concordat entered into with the selfsame Holy See refers chiefly 
to the personnel, circumscription, and regime of the churches of the peninsula, it, 
however, extends in cases of acts of the Ciovernment to all my dominions, as is 
expressly stated in several of its first articles, and most especially in article 42, in all 
that relates to the disposal of church property. 

The concordat therefore constitutes the principal legal grounds in 
this affair, and all the provisions made thereafter have had to be gov¬ 
erned bv the concordat, its aims, and the rules laid down in same. If 
this had not been done, if the Queen of Spain had issued an order, if 
the Cortes had enacted and the Queen sanctioned an authorized law 
regarding the properties of the church, somewhat contrary to the 
concordat, that order or law would have been void, because the con¬ 
cordat is a treaty which can not be abrogated by a law or by a public 
royal order; it is, as eveiybody knows, a treaty that constitutes a 
bilateral contract, in which two or more contracting parties remain 
equally l)ound, and it is evident that the treaty would l)e a mockery if 
one of these contracting parties could lawfully, l)y merely enacting a 
law for its dominions, annul the obligations which have been solemnl}" 
contracted, and annul the rights of the other interested parties also. 

There may be .sat down the principal, evident, indisputable, and 
never-contradicted proposition, that the provisions made by the Span¬ 
ish Government have respected in all parts, more or less, the essential 
principle or condition of that solemn agreement, to wit: That a com¬ 
pensation which would consist in the support of the worship and the 
clergy; that is to say, that the State should have the right, so long as 
it complied with the correlative obligation, the obligation with which 
it could not fail to comply without immediately'losing the right which 
it enjoyed onl}" by complying with same, was necessarily attached to 
the benefit that the State had derived or was deriving from the church 
properties, through the .sales which it had made of many of these, 
and which sales were confirmed by the agreements entered into in 
the concordat. 

The Spanish (xovernment has also recognized and proclaimed the 
truth of such a well-grounded and just doctrine. 


12 


CHURCH LANDS IN PORTO RICO. 


Mr. Fugenio Montero Rios, minister of gracQ and justice, stated in 
his preliniinaiy remarks-when presenting to the Cortes, on October ly 
1871, the budget bill for the payment of church obligations— 

The necessity of indemnifying the church for the properties which at different 
times have been taken from her by the State, is the foundation of the obligation 
contracted by the State to support the worship and the clergy of the Catholic 
religion. 

This explains why the church received what the treasuiy delivered 
to her for worship and the clergy. 

All appropriations for this purpose ceased since January 10, 1899^ 
and the church found itself without pension and without propert}^ 
In view of this his grace the bishop of Habana filed his claims. 

His grace, the bishop, filed claims for the payment of a definite 
indemnit}^ for the property disposed of, that would take the place of 
the indemnity called ‘‘the budget for the worship ” (Presupuesto de 
Culto), and the basis of which shall be decided upon b}" the state and 
the church. 

The undersigned do not think that such petition can be made to per¬ 
sons who neither sold the properties nor have been parties to the treaty 
made with regard to same; or who could not, consequently, violate 
oblig’ations which they had not contracted. It is a question here of 
personal liabilities; the writers do not deny the right of the church to 
ask for this indemnity; what they deny^is, that the liability in this mat¬ 
ter has to rest with any other person or entity than that of Spain. 

The object of the other principal claim is— 

The return of all those properties of ecclesiastical origin, held by the state, no mat¬ 
ter what might be their nature or the motives for acquiring same. 

The legal and exact, entirely exact precedents stated, are more than 
sufficient to allow one to form a just opinion on this matter. With 
exception of the cases stated in the concordat, there is no reason why 
the Spanish Government should be in possession of any property of 
the church. All the properties belonging to her, disposed of by the 
state prior to the concordat, remained, by- the declaration and promise 
of the sovereign pontiff, irrevocably^ sold. It is not a question of these 
properties; it is a question of those that were not sold and which the 
Spanish Government possessed in the island without any other reason 
than that of having occupied same. They^ were like the onces which 
made Queen Isabella II say, in a decree stated November 26, 1852: 

They were effected by the superior authorities of the island during my minority 
and without the property authorization of my Government. 

But let it be supposed that the Government had acquired them 
through an exchange suggested by the respective prelate; let it be 
supposed that the occupation had not been a mere fact, but that in 
order to effect same, all the stipulations in the concordat had been 
complied with. Let it be supposed that the value of those properties 
had been invested so that the revenues derived from same went to the 
clergy or in order that they might be included in the compensation; 
from the moment that the compensation had ceased to exist, by what 
right, with what title or with what justice, did the Government con¬ 
tinue to hold those properties? If those properties not disposed of, 
and the ownership and possession of which belong to the church, are 
not in the possession of the church, they^ are held by the state or by 


CHURCH LANDS IN PORTO RICO. 


13 


some person, l^e it who it may, as some one else’s property, which 
according to the phrase in the Roman law, calls for its owner (‘‘clamat 
Domino”). 

Ill order to maintain the contrary, to maintain that the Kingdom of 
Spain, or any other entity w'hatever, could continue to hold without 
making the pa 3 "ments agreed upon for the possession of the thing, it 
would be necessary to demonstrate that of the two parties that had 
made a contract, imposing reciprocal obligations on themselves and 
conferring correlative rights on one another, one of the parties could 
lawfull}’^ cease to compK with the obligations and continue to enjo}^ 
the rights, while the other party, completeh" deprived of rights, would 
yet be bound with the obligations. Such an opinion would lie one of 
the greatest absurdities imaginable; it would be in the most violent 
opposition to a principle of justice so elementaiy, so evident, and so 
necessaiy that even without treaties or laws it is written in the con¬ 
sciences of all men. 

The church does not require to present with the claims herein 
referred to title deed to each property held b}^ the State, because the 
State hits always acquired the possession, as Mr. Montero Rios said, 
^‘through expropriation,” or as may be said in techinal, juridical lan¬ 
guage, “through spoliation.” 

The church has been positively despoiled, and spoliation is a title 
for restitution; restitution must, before all things, be made to the 
despoiled. It is so proclaimed by the old principle “ spoliatus ante 
omnia est restituendus,” and if the State or any other entity has any¬ 
thing to adv^ance against this let it do so at the proper time; that is to 
sa 3 % after the said restitution, and then a special examination will be 
made, and it will be seen whether it has a greater title to be deter¬ 
mined property or right in the property (jus in re) than the naked 
right of occupation. 

The Commission, theiefore, considers that the Bishop’s claim is 
just—just in ever^' part. 

The reasons for the return are, if possible, stronger, if this return 
is considered from a standpoint of what especially relates to the 
expropriations of the church properties made by the Treasuiy Depart¬ 
ment during the j-ear 1899 and the* current one, i. e., during the mili- 
taiT occupation b}" the Americans. The church w^as in peaceful 
possession; she collected revenues on a number of annuities (censos), 
and the Treasury Department, during the American administration 
and occupation, though the treaty of Paris was then in force and 
though this Government had promised to protect those who were in 
peaceful possession, not only fails to compl}^ with this but, in the 
name of this veiy Government, despoils the church, who is the pos- 
5iessor in fact, the possessor in right, and the peaceful possessor. 

The bishop, moreover, asks the pa^unent of all the rents or reve¬ 
nues from JanuaiT 1, 1899, of all these properties held by the State. 
This petition is the logical consequence of the former, if the church 
had to be put back into possession from January 1, 1899, because 
from that date the appropriations for the clerg}^ and worship ceased 
to be paid to her; she must also receive the products of the said prop¬ 
erties from the same date; because, as the accessory goes with the 
principal, an absurd inconsistenc\" would be incurred, and a new 
spoliation would l>e patronized, if it were pretended that though the 


14 


CHURCH LANDS IN PORTO RICO. 


church must be put back into possession, the Treasury Department 
and not the church was to be the one that should take and appropri¬ 
ate the revenues. 

From the foregoing the commission draws the following conclusions: 

1. That the claim for indemnity to the church for the sale of the 
properties which Spain disposed of can not be made to any other 
entity than that of Spain. 

2. That the petition for the return to the church of all the proper¬ 
ties of ecclesiastical origin held by the State, no matter what their 
nature might be, is a just one. 

3. That it is also just that the church be credited with the revenues 
of those properties from elanuary 1,1899, until this matter is dihnitely 
settled. 

The bishop makes two urgent petitions—that the seizures cease 
immediately, and that there be returned without delay to the entities 
or persons dispossesed all the properties or annuities (censos) or proper¬ 
ties of any other kind which by the title of seizure may have been taken 
by the authorities or officials of the State during the year 1899 and the 
current one. For the same reasons previously set forth the commis¬ 
sion believes that the two petitions to which reference has just been 
made are well-grounded and just. 

This is the judgment of the undersigned, in which they may, per¬ 
haps, have fallen into error, but having used every effort to the best of 
their ability in order to avoid this they believe that they have com¬ 
plied with their duty, and their consciences rest easy. 

Habana, October 27, 1900. 


Mr. Penjield to Mr. Forahe7\ 


Hon. Joseph B. Foraker, 

United States Senate. 


Department of State, 

Washington, Jnne 2S, 1902. 


Dear Sir: Mr. Kennedy informs me that your committee meets at 
half past 10 this morning, and on account of the shortness of the time 
I hand to you by Mr. Kennedy the original telegram from Governor 
Hunt, with reference to certain ecclesiastical properties in Porto Rico 
for your consideration, with the understanding that Mr. Kennedy is 
to return the telegram to the liles of the Department. Secretary Hay 
has not been able to confer with the President on the subject, and is 
unable, therefore, to make any recommendation at present. Whether 
the President would prefer that the reference of the matter should be 
made to him for final decision or that it should be made to the Secre¬ 
tary of State or to the Attorney-General or to Congress, I am unable 
to say. 

The matter is submitted for your consideration. 

Very truly, yours. 


W. L. Penfield. 


LBJl^04 



CHURCH LANDS IN PORTO RICO. 


15 


The Secretary of State to Governor Hunt. 

June 12, 1902. 

The Governor of Porto Rico, 

San Jaan^ P. R. 

Sir: 1 have the honor to inclose herewith a copy of a letter from 
Messrs. Coudert Brothers and copies of its accompanying* documents, 
relative to certain property claimed by the Catholic Church in Porto 
Rico. 

\ oil will examine the inclosed copies of House bill No. 14211: and the 
added proviso and report without delay to the Department by cable 
in regard to their passage. 

You will also suggest any changes or amendments in the form or 
substance of the bill which you ma}" find advisable. 

1 have the honor to be, sir, ^mur obedient servant, 

John Hay. 

(Inclosures: From Coudert Brothers, with accompanying papers. 
June 11, 1902.) 


Governor Hunt to the Secretary of State. 

[Telegram.] 

San Juan, P. R., June 1902. 

Secretary Hay, Washington: 

Your letter June 12 pertaining church property received. We 
heartily approve House resolution No. 14244 as passed by House; but 
proposed Senate amendment unwise without providing for investiga¬ 
tion first. It would deprive Government of certain valuable properties 
which have not been in possession of church for many 3 ^ears, if even 
[sic] and which have been occupied by military and civil governments 
ever since American invasion, title to which should not be conceded 
in any persons or organizations unless established after investigation 
of past history and present claims. We are most anxious for early 
adjustment, and believe the fairest and most expeditious method would 
be b^" substituting for proposed Senate amendment following clause: 

Provided further, That the President is hereby authorized to appoint^a commission 
of three persons whose duty it shall be to make careful investigation into titles and 
claims, legal or equitable, of the Holy Roman Catholic Church in and to any and all 
real property situate within Porto Rico and claimed respectively by said church and 
the Government of the United States, or of Porto Rico or any local government 
thereof, and to make findings and conclusions with respect to the said property or 
any part or parts thereof and thereafter to advise such recognition, disposition, and 
settlement as may to said commission seem just and equitable and in conformity 
with the provisions of the treaty of Paris. The said commission shall make full 
report of its examinations and findings, together with its opinion, to the President 
within six months after its first sitting; and if the President approve such report, or 
any part thereof, he is hereby authorized and empowered to deliver possession to 
the said church of any and all real property or any part thereof described in said 
report as that which properly belongs to said church, and thereafter any property so 
delivered by order of the President may be registered as church property in the 
same manner and with the same affect [effect] as other property of the same kind 
under the laws in force in the said island. The salaries of the said commission shall 
be in such sum as the President may fix. The commission shall organize at San 
Juan the first Monday in October and it is hereby made the duty of the governor of 
Porto Rico to furnish a suitable place for them to hold their sessions. 

Hunt, Governor. 


O 





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